Hassan v. Holder

• Decision Date: 02 July 2009
• Docket Number: No. 08-1535.,08-1535.
• Citation: 571 F.3d 631
• Parties: Ahmed HASSAN, Petitioner, v. Eric H. HOLDER, Jr., Attorney General of the United States, Respondent.
• Court: U.S. Court of Appeals — Seventh Circuit

571 F.3d 631

Ahmed HASSAN, Petitioner, v. Eric H. HOLDER, Jr., Attorney General of the United States, Respondent.

No. 08-1535.

United States Court of Appeals, Seventh Circuit.

Argued February 18, 2009.

Decided July 2, 2009.

David M. Cook, Attorney (argued), Geman & Associates, Chicago, IL, for Petitioner.

Julie M. Iversen, Attorney, Jonathan Robbins (argued), Department of Justice, Washington, DC, for Respondent.

Before ROVNER, EVANS, and TINDER, Circuit Judges.

TINDER, Circuit Judge.

Ahmed Hassan, an Ethiopian national, petitioned for asylum, withholding of removal, and relief under the Convention Against Torture ("CAT"). The Immigration Judge ("IJ") denied Hassan's petition, concluding that inconsistencies between Hassan's asylum application and hearing testimony rendered his claims incredible and, alternatively, that Hassan failed to show the persecution necessary to establish asylum eligibility. The Board of Immigration Appeals ("BIA") affirmed the IJ's decision. We deny Hassan's petition for review.

I. Background

On November 4, 2005, Hassan attempted to enter the country at Chicago's O'Hare airport under the "Visa Waiver Program," see 8 U.S.C. § 1187, using a fake Swedish passport. Immigration officials determined that the passport was invalid and detained Hassan. The Department of Homeland Security commenced "asylum-only" proceedings before an Immigration Judge to effect Hassan's removal. See id. § 1187(b)(2); Mitondo v. Mukasey, 523 F.3d 784, 785-86 (7th Cir.2008). Hassan requested asylum, withholding of removal, and protection under the CAT.

A. The Asylum Application

In his asylum application, Hassan stated that he is an Ethiopian national and an ethnic Oromo. Hassan's father was an "important figure" in an organization fighting for the independence of the Oromo people. In 1986, when Hassan was six years old, his father and uncle were killed during an armed conflict with the Ethiopian military. Fearing that the Ethiopian government would retaliate against Hassan's family for his father's military activities, Hassan's mother relocated the family to the neighboring country of Djibouti, where they resided illegally.

Hassan's application further stated that in 2004 he agreed to accompany his cousin, Anwar Gamada, back to Ethiopia to visit Anwar's dying mother. Anwar's mother died the day after their arrival, and they went to a burial ceremony. At the grave site, a truck carrying five to seven Ethiopian soldiers arrived, and Hassan told Anwar that "[t]hey have come for us." Hassan and Anwar started running. A soldier shouted at Hassan and Anwar to stop, but they continued to flee. The soldiers fired two shots, missing Hassan, but hitting and killing Anwar.

Hassan escaped to Djibouti and reported the shooting incident to his mother. Fearing that the incident would lead the Ethiopian authorities to discover Hassan's whereabouts, Hassan's mother hired a smuggler to get Hassan out of Djibouti. Hassan traveled through Yemen and Italy, staying in each country for about two months. He then traveled through Germany, Denmark, and Sweden before finally arriving at Chicago O'Hare. Hassan requested asylum based on persecution for his political opinion and membership in a particular social group.

B. The Asylum Hearing

At the asylum hearing on May 2, 2006, Hassan testified before the IJ via video conferencing. Hassan elaborated that his father and uncle were soldiers in the Oromo Liberation Front ("OLF"), a politico-military organization dedicated to the rights of the Oromo people. Hassan is not himself an OLF member. In describing his 2004 return to Ethiopia to visit his dying aunt, Hassan added that the Ethiopian government had confiscated his aunt's house, leaving her destitute. Regarding the shooting at the burial ceremony, Hassan acknowledged that the soldiers shot at him and Anwar only after they started running. The soldiers did not fire on any of the other burial attendees, none of whom tried to flee. The soldiers shouted at Hassan to stop but did not call him by name or say anything about his ethnicity.

Hassan also testified about a number of repressive acts against his family not mentioned in his asylum application. He stated that, just prior to his father's death, Ethiopian soldiers threatened his mother that they would "exterminate the whole family" if the father did not stop his military activities. When the IJ asked why Hassan had not included that threat in his written application, Hassan stated that "at that time ... I was in sort of a confusion ... they interpreted to me in another language, which is Amharic." In response, the IJ pointed out that Hassan had sworn at the beginning of the hearing that he went over the application "in a language that [he] understood" and that the application was "correct and complete."

Hassan recounted that, following the death of his father in 1986, Ethiopian soldiers burned down the family's previous house, although the family had safely moved by that point. When asked on cross-examination why he failed to mention the house burning in his written application, Hassan stated that he was unaware that "the rules" required him to include this information.

Finally, Hassan testified that, following his escape from the shooting incident and return to Djibouti, his family relocated to another Djibouti community to avoid detection. After the family learned that the Djibouti police had searched for them at their prior home, Hassan's mother hired a smuggler, Mustafa, to get Hassan out of the country. The IJ confronted Hassan on his failure to include this search in his application. Hassan responded that "[n]obody has raised this question about who bothered me." The IJ again pointed out that Hassan had sworn that his application was correct, and that several questions on the application specifically ask "whether or not he was ever mistreated in the past."

In addition to his own testimony, Hassan offered the testimony of his aunt, Mahbuba Nasir, and his second cousin, Faisal Mohamed. Both confirmed that Hassan was an ethnic Oromo. Nasir testified that Hassan's father was involved in the OLF and killed in 1986, while Mohamed testified that the government persecuted the families of those affiliated with the OLF.

C. The IJ's Decision

On May 12, 2006, the IJ rendered an oral decision denying Hassan's asylum application. The IJ determined that Hassan's hearing testimony was incredible based on a number of "new factual assertions" omitted from Hassan's written application, including the 1986 threat by Ethiopian soldiers to Hassan's mother, the burning of the family's house, the confiscation of Anwar's mother's house, and the search for Hassan by the Djibouti police. The IJ further concluded that Hassan failed to provide a plausible explanation for why he omitted these events from his application. When questioned about the omissions, Hassan was either unresponsive or "tried to indicate ... that he did not understand the information in the application and had no opportunity to provide the information." Hassan's claim that he did not understand the application was "expressly inconsistent with his earlier testimony under oath to the Court that the information was reviewed in the Oromo language" and "that all the information was true, correct and complete.... Therefore, the only explanation presented to the Court by the respondent is patently false." The IJ accordingly denied Hassan's asylum application "based on an adverse credibility finding."

The IJ held in the alternative that, even if Hassan "had presented credible and consistent testimony," he nonetheless failed to show the persecution necessary to establish asylum eligibility. Hassan had no evidence that the 2004 shooting incident was related to his father's OLF activities. The IJ noted that Hassan traveled through several countries without applying for asylum before arriving in Chicago, suggesting that he left Djibouti out of a desire to come to the United States rather than a fear for his life.

The IJ also considered the background evidence submitted by Hassan, including country conditions reports prepared by the State Department and the affidavit of Professor Halberson, an expert in African Political Science. The IJ acknowledged that this evidence indicated that the Ethiopian government continues to engage the OLF in armed conflicts. Further, the ruling party frequently mistreats political minorities and the Oromo people, who make up 40% of the Ethiopian population. However, the IJ concluded that Hassan could not rely on these general conditions of violence and mistreatment to prove his claim of persecution, especially since Hassan was not an OLF member or an outspoken political activist.

D. The BIA's Decisions

On September 11, 2006, the BIA affirmed the IJ's decision, concluding that Hassan failed to show the persecution necessary to establish asylum eligibility. The BIA also found that the IJ's adverse credibility determination was not clearly erroneous. The BIA agreed with the IJ that Hassan's claim that he did not understand the asylum application was inconsistent with his earlier testimony that he reviewed the application in a language that he understood. Because Hassan provided a "false excuse" for omitting certain events from his application, the IJ properly determined that Hassan's testimony was incredible.

After Hassan petitioned for review of the BIA's decision, this court remanded so that the BIA could consider the application of the REAL ID Act of 2005, Pub.L. No. 109-13, div. B, § 101(a)(3), 119 Stat. 231, 303 (2005) (codified at 8 U.S.C. § 1158(b)(1)(B)), to Hassan's application. In its subsequent opinion, the BIA moderated its view of the IJ's adverse credibility finding, acknowledging that the IJ may have mischaracterized portions of Hassan's hearing testimony. In particular, the BIA accepted Hassan's explanation that his apparent lack of responsiveness to the IJ's questions resulted from...